Thursday, November 09, 2006

Gender & Mediation: Imbalance of Power as a Reason Against Mediation?


I have read several articles lately about perceptions that women may fare worse than men in mediation because of an imbalance of power and that perhaps mediation is not a wise choice to resolve disputes when there is such an imbalance.

I believe that mediation is absolutely the right place to resolve a dispute where there is a power imbalance between the parties. I also believe that women do not fare better or worse than men in mediation. I strongly believe that each mediated result is a reasonable and fair result to both parties and that there is no "winner" or "loser" in mediation because everyone walks away with their own "wins."

Just as the inherent power imbalance present in an Employment case (little employee with limited resources vs. big employer with big financing and attorneys) is easily handled by a skillful mediator, any power imbalances between men and women in any kind of mediation are also easily handled by the mediator who is trained to look for and recognize such issues regardless of which gender holds the power on any given issue.

A power imbalance in a Family Law case can include such issues as one party having control and knowledge of the finances, one party having sole access to all the documents, one party having control of all decisions regarding children (school, medical, religion, etc.) or the house, or other assets, as well as one party being more aggressive or controlling during the marital relationship.
From my experiences as a Family Law attorney and Divorce Mediator, both men and women occupy varying sides of these issues in different ways, creating various power imbalances in each relationship depending on the issue.

As a mediator, part of my role in "facilitating communication" is to ensure that each party is able to express their needs and interests and to ensure that each party has sufficient information (factual and legal) to make an informed decision that each party believes is in his or her best interest.

As the neutral mediator, it is not my job to tell someone what is actually in their best interest, but it is my job to make sure that each party feels comfortable and confident in obtaining and processing all of the necessary information, making sure neither party feels unduly pressured by the other party, and to make certain that each party makes their own informed and reasoned decisions of his and her own free will and determination. It is free will and determination of the parties that is supported and promoted in the mediation process and which is lacking entirely in the litigation process.

2 comments:

Anonymous said...

Do you believe the presence of an attorney(s) in civil mediation helps to mitigate power imbalances? If so to what extent does this presence limit the interest exploration

Uncle Scotty said...

Hi,

I am taking a university course on mediation and was fascinated by your post. Are you aware of any scholarly articles that you could point me to on the issue of power asymmetry and mediation?

Thanks, Scott